Iffco Tokio General Insurance Co. ... vs Dharmisthaba Jayendrasinh ...
2022 Latest Caselaw 836 Guj

     C/FA/6111/2019                               JUDGMENT DATED: 27/01/2022




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                      R/FIRST APPEAL NO. 6111 of 2019


FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE R.M.CHHAYA
and
HONOURABLE MR. JUSTICE NIRAL R. MEHTA
 ===============================================================
1   Whether Reporters of Local Papers may be allowed     NO
    to see the judgment ?

2    To be referred to the Reporter or not ?                             NO

3    Whether their Lordships wish to see the fair copy                   NO
     of the judgment ?

4    Whether this case involves a substantial question                   NO
     of law as to the interpretation of the Constitution
     of India or any order made thereunder ?

===============================================================
       IFFCO TOKIO GENERAL INSURANCE CO. LTD. GANDHIDHAM
                              Versus
               DHARMISTHABA JAYENDRASINH JADEJA
===============================================================
Appearance:
MR RATHIN P RAVAL(5013) for the Appellant(s) No. 1
RULE SERVED BY DS(65) for the Defendant(s) No. 1,2,4
SERVED BY RPAD (R)(66) for the Defendant(s) No. 5,6
UNSERVED EXPIRED (R)(69) for the Defendant(s) No. 3
===============================================================

    CORAM:HONOURABLE MR. JUSTICE R.M.CHHAYA
          and
          HONOURABLE MR. JUSTICE NIRAL R. MEHTA

                              Date : 27/01/2022

                             ORAL JUDGMENT

(PER : HONOURABLE MR. JUSTICE R.M.CHHAYA)

1. Feeling aggrieved and dissatisfied by the judgment and

C/FA/6111/2019 JUDGMENT DATED: 27/01/2022

award dated 2.5.2019 passed by the MAC Tribunal (Main)

Kutch-Bhuj in MAC Petition No.274 of 2017, the appellant -

Insurance Co. has preferred this Appeal under Section 173 of

the Motor Vehicles Act, 1988 (for short 'the Act').

2. The following facts emerge from the record of the

Appeal:

2.1 That the accident took place on 16.9.2017. It is the case

of the claimants that the deceased was going on motorcycle

bearing registration No.GJ-12-AR-3097. When he reached the

place of accident, Bolero jeep bearing registration No.GJ-12-

BT-6378 being driven in rash and negligent manner came on

the wrong side and dashed with the deceased, because of

which the deceased sustained serious injuries and succumbed

to the same. An FIR was lodged with the jurisdictional police

station at Exh.32. The present claim petition was filed under

Section 166 of the Act and claimed compensation of Rs.49

lakhs. The claimants relied upon the oral evidence of one of

the claimants at Exh.23 and one Amit Joshi, an Officer of

Viable Associates wherein the deceased was working at

Exh.29 and also relied upon the documentary evidence as

under :

C/FA/6111/2019 JUDGMENT DATED: 27/01/2022

Particulars Exh.

        Village Form No.7 and 12                                      41, 42









2.2     It was the case of the claimants that the deceased was

working as Supervisor in Viable Company at Mudra and was

getting salary of Rs.15,500/- per month and also earning

Rs.10,000/- from agricultural work. Relying upon the pay slip

for the month of August, 2013 at Exh.30 and the oral

deposition of Amit Joshi at Exh.29, it was contended by the

claimants that the income was even more than Rs.15,500/-. It

is not in dispute that the deceased was 31 years old and as

C/FA/6111/2019 JUDGMENT DATED: 27/01/2022

per the deposition of Amit Joshi, he was not in permanent

service.

2.3 The Tribunal, after appreciating the evidence on record,

more particularly considering the pay slip at Exh.30, which

bifurcates the salary of Rs.15,500/- into two major heads i.e.

salary and D.A. and other allowances and also considering the

agricultural land, determined the income of the deceased at

Rs.9000/-. The Tribunal, while considering the same, has also

considered the fact that the agricultural lands have remained

with the family and no separate or additional income is

considered while considering the income of the deceased at

Rs.9000/-. The Tribunal, after considering the prospective

income to the tune of 40% and after deducting 1/4th towards

personal expenses, applied multiplier of 16 and awarded a

sum of Rs.18,14,400/- as compensation under the loss of

dependency and also awarded further additional

compensation of Rs.70,000/- under the different heads. Thus,

the Tribunal has awarded total compensation of

Rs.18,84,400/- with 8.5% interest to the claimants.

2.4 Being aggrieved by the same, the present Appeal is filed

by the appellant - Insurance Co.

C/FA/6111/2019 JUDGMENT DATED: 27/01/2022

3. Heard Mr.Rathin P. Raval, learned counsel appearing for

the appellant - Insurance Co. Though served, no one appears

for the respondents including the claimants. In order to

ensure that the respondents more particularly the claimants

are informed about the hearing of this Appeal, this Court

passed the following order on 15.12.2021 :

"Though served, no one appears on behalf of the original claimants. As a last chance, stand over to 22.12.2021. Mr. Raval, learned advocate for the appellant is requested to inform the other side by RPAD informing them about the next date of hearing."

3.1 Mr.Rathin P. Raval, learned counsel appearing for the

appellant, submitted that the said order has been complied

with and the respondents have been intimated about the date

of hearing today.

4. Mr.Rathin P. Raval, learned counsel appearing for the

appellant - Insurance Co., has contended that the Tribunal

has misread the pay slip at Exh.30. According to Mr.Raval,

only the net salary and the DA should be considered as

income of the deceased. Mr.Raval also submitted that the

Tribunal has erred in determining the income of the deceased

C/FA/6111/2019 JUDGMENT DATED: 27/01/2022

at Rs.9000/-. Learned counsel further contended that the

father of the deceased i.e. Chandrasinh @ Batuksinh

Hemantsinh Jadeja was not the dependent on the deceased

and, therefore, the deduction should be 1/3rd and not 1/4th as

considered by the Tribunal. It was also contended that it has

come on record that the deceased was not wearing his helmet

and thus, there is a breach of conditions of the insurance

policy and hence, the Insurance Co. should be exonerated

from its liability. It was also contended that the interest @

8.5% is on higher side which should be reduced to 6%. On the

aforesaid ground, Mr.Raval contended that the appeal be

allowed. No other or further submissions have been made by

the learned counsel for the appellant.

5. The questions which arise in this Appeal are as under :

(1) Whether the Tribunal has committed any error in

determining the income of the deceased at Rs.9000/- or not?

(2) Whether the Tribunal has committed any error in

deducting 1/4th towards personal expenses, consider the

father of the deceased as dependent or not ?

C/FA/6111/2019 JUDGMENT DATED: 27/01/2022

(3) Whether there is any breach of conditions of policy by

nor wearing the helmet ?

6. As far as the Question No.1 is concerned, we may aptly

refer to the pay slip at Exh.30. It is not in dispute that the

deceased was working as Supervisor in Viable Associates. It is

also proved by the claimants by deposition of Amit Joshi at

Exh.29. Upon re-appreciating the evidence in form of pay slip

for the month of August, 2017 which reveals that Rs.6,971/- is

the basic salary + DA and Rs.8529/- is the other allowances.

We also find from the bare reading of the pay slip at Exh.30

that there is no bifurcation of other allowances and, therefore,

there cannot be blanket deduction from the salary of the

deceased. On the contrary, we find that the Tribunal has

balanced the income by taking a dictum figure of Rs.9000/-

instead of Rs.15,500/- and hence, the Question No.1 is

answered in favour of claimants and we hold that the Tribunal

has not committed any error in determining the income of the

deceased at Rs.9000/-.

7. As far as the contention that the father was aged 60

years on the date of the accident and was not dependent, is

not even raised before the Tribunal. Moreover, there is

C/FA/6111/2019 JUDGMENT DATED: 27/01/2022

nothing on record and evident that the father was not

dependent and, therefore, said contention also deserves to be

negatived.

8. Similarly, so far as the contention as to the breach of

conditions of not wearing helmet is concerned, the same is

also taken for the first time before this Court in this Appeal.

There is nothing to show that any such eventuality has

occurred and, therefore, said contention also deserves to be

negatived.

9. As far as the contention with regard to the interest is

concerned, we find that the accident is of the year 2017 and

as the Tribunal has exercised its discretion, we do not find it

appropriate to modify the same.

10. Resultantly, the Appeal fails and is hereby dismissed. R

& P be transmitted to the Tribunal concerned forthwith.

(R.M.CHHAYA,J)

(NIRAL R. MEHTA,J) V.J. SATWARA